REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI PETITIONNUl,WBER ·72~0F 2015

TEACHERS SERVICE COMMISSION ........................... PETITIONER

VERSUS

, . •. . < . . 'sT'' KENYA NATIONAL UNION/OF. TEACHERS .. • ....•. •.••'•\1 .. ·RESPONDENT

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KENYA UNION dF POST~~fa:M.A:Rv ;.~.z· •. ,~·~< · EDUCA~ION;TEAbJIERS!!;~···~·~ .. ,~:.~:~: ..... ~,{~J&~jt'~S£:: ....... 2No RESPONDENT

1.

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The present petif1~~:~.a,i~.>fll~d d~~~~~t~F~~ .. with an interlocutory

·Notice of Motion dat~d 2nd Se;~;rrltr,~,i;·~:~·i),15:.seeking orders 1n --'.·'',-. .. ·.

- }•,:::,_

''"~~-;·:~~~?:;:_< ·~:s:;:<· the main:-

(a) That there be a Con§~rtratory .:qr~~F\".·, prohibiting the Respondents, their officials, ··~Grvants/c.<~'g¢hti~ and or their members from calling or participatihgih ctny~·trike on account of the non-payment and or delayed. payn1et\t of the salary increments ordered by the Court to pe pftid ·:With effect from 1st

August 2015. ., • :---

._,·.:·.

(b) That the Conservatory order issti'~d under 2 above to remain in force until the hearing and deterf:n!nctj:io:p.. of the petition or until further orders of the Court.

2. The motion was based on grounds among others:-

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3.

(a) That the Respondents hav~ called all teachers in public schools on strike with effect (rom 181 September, 2015.

(b), .That the strike has been called in violation of constitutional provisi6hs and without observing statutory procedures under the Labour Relations Act No. 14 of 2007.

(c) That the strike , fundamental ,,;freedOms ConstitutioD:t';,<" c> • , ,

-_~i<>, ··'t~~~;f

violates the P,~#~r~trer's rights and under AtticlJ~t':;@~~448 and 50 of the

. '·'"· "~ ' . '

":~-~'A· ;~~<{c· .. :<-.'~s{~U

,, · (<i) .. TQ.atithe ,str:il{e~,Mi'blate~~:. ,c.::" d fundamental freedoms of cflU<fren a~~ttditr'&"tJ~b!~~r(·~~~~J~;~i:ts guaranteed by Article 53 of the Constit\.rt.!grt.;''" ':L·~(;:·;,; :~!\;,,~J~~,,},+/

: ~Y >{~;~;;~~~~r;~~~-~ ~f·;: :

(e) That ·£1}·.··~ .. {.·. ~tfike is ~~~~~·~;,~~~17~ policy;, '" ·::~,~.~<'

:;: ,;-'.:,·'s"\:-~ ,_ro!56> .. .·.·. .··.. . .'; ;:~;;-, ··:-i/ ,.,. . . . ,~:t··· ..

The respondent~ PJ'l~Q~e!i 'fhe,Qtfl~>~(lugh('in the Notice of

. Motion by filing :t'A~tj'~~ of pref~~~~:tion dated 4th and

~ ~

7th September, 2015. :,:;," •,:;',''

4. The objections were in the main that;-

(a) The matters raised were res judicata, was functus officio, the application was a blatant abuse'oftbe~~burt process and that the petitioner had become a vexatiod§';lifl~~t}':~;.

~J:;~. :::\~~-~;;~;;r~ ~} ~;·::.~:, .· ~ ; <;;.r:~~1~7(~t~

(b) The respondent's further contetided:~hat'the"~otion sought the review of the judgment in Petition j\~·o7~,S~>,()f,,'2o"t·5;, and reverse the decisions of the appellate Courts ind\lditig tbec'''S:1Jpreme Court. It was further contended that the petiti~:tl~~h:d th~::·'fnotion sought to elevate a simple contractual obligation disagreement into a constitutional issue hence an abuse of the Court Process.

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5. On 4th September, 2015 when the parties herein appeared before

Lady Justice Monica Mba.ru, and af~er hearing submissions by

Counsel, the learned Judge ordered among others that the

Industrial q..otion Thy the respondents was unprotected. She

further ordered that both parties be heard with respect to the

Preliminary Objectioh'~by the respondents whi¢l,);,cwas to be filed

and beheard on lOth~eptember, 2015. , ' - ' ,_',:>:::\-,'

5. On ldth;"$epte~J?er, :?'015':~~en ~~~;~es appeared before me, -< :~~-:~ ,, . :: < • • _,,~;-::· __ -~;,- .,>_ ,,. . .<<{; :··~:-~'~:··<::Y_,~;~:.::·.-,

Mr. Ahmednassir Senio'r;~,,@~~ns.~l•{9)i~rithe 1st respondent in what '. f ·-·> .. ·"",;' · .. ·. ,. ~>< • •• \i:.: <,(...

,he J~rfued; as a'' hoti:'se~k:eepi~~~.:i~~~~e, :eu,;gm.ed that since the ~ :~~~;:: . <." . i?';> -~~f\·~~)~~~)/;~~\~~ ;~~: ~;J~;(S , , 'S. . , . , ~

matter w~s an.offspring of ~1¥!$:W$e~'iNderi's,juqgment in Petition

No. 3 of 201S, the~learnledtf~~~~~;::i\W~s ,th:e, o~e best placed to ; . __ _} . ~-{; ·' ;~

handle it. ~t. ''1"~\it\;1\ifllite ~~n(~r,~;~~~se1 also for the 1st

· respondent concurred 'f;With submis#\@:ti[I·c:'f~y, J\1r. Ahmednassir ·. \.·:~, -.,.: -. ··?·~-~:'C~:·«~\~~0;~-~a:·,)~-:~l\ _,, .·_·

and Mr. Harun Ndumbi while,,~greeing'';~~;:i,mlJ:c~:·.added that the

petition and the motion was ~ attem~t,,\\~5~;i,fe\riew or amend '.- ',' .<' (•,v, ' <'~, ~·,,;:'

- . . . . .

Judge Nderi's judgment in Petition No. 3 of2:()f$::!, ',·~-

"'-··;<-\ ,·,r·, . - t-·.:'·_·--

6. Mr. Obura, for the Petitioner on the oth,~r';p..a,llclsubmitted that

the prayers in the Petition were differen~"f~,8w the judgment of >· ~:< ·:: . ' ' _',- ",.

Nderi J in Petition No. 3 of 2015. Acco~ding tbtMr. Obura the ', ···~

>),tl

Petition was anchored on the strike Cafl~ci~'by th~' respondents on

1st September, 2015. Mr. Kiragu Kil11.ani:'ruso ;f6r the Petitioner

agreed with Mr. Obura adding that the respondents were

changing since they had wanted the matter to be heard by more

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than one Judge and now they were changing that it be placed

before Nderi J. Mr. Bitta for the Attorney General associated

himself with submissions of Mr. Obura.

7. After considering arguments by both sides, I ruled that the

Motion and the Petiuidn raised new issues and was distinct from

the judgm~nt of Ndf:!ri .J in Petition )'It(·.~.~~f 2015 since it

questioned;~,the lega\tfr of. th~ strike;c·~·~I~d. by the Respondents " ' ::) ~: ' ', ; ,-,_ ,, --" ' ~ '"

on 1st Septemb~r, ~0.15 anct,co~c;~r~eq. Government's fiscal and

budgetary procedur~s·, fnq~\.~w~~fit~Mi~;funds ordered payable to -- ·, ' . '/ .. ' '. >>25~-~J>--·.'

th'e. re,s'ponden t 's Ip.~mber~. cotil~:r:~.~~<:l!:ctwn. . ·),; .• .,. ""\•··~" .. :;;~ti~.· . t-,,:

·~>,

8. After dispbsing of tK·e lor~g~i~ ~~~~t.,if'~a~ ~:reed by consent

of the parties that}t3_$~'~·"Way fot\V~~:·:~~:Jn the interest of time,

the Notice of Moti~n.dated 2nd S~pt.~ll-t~.~~,·;@.()>l5 be merged with

the Petition and argued as part of.:t~~:··.~~tltion and in that

regard, I directed that the Respondents 'tc:>~;·U!~.>flhd serve their

response to the petition by close 0f busin~·~~~·.~~; next day and ' ·:;; < .. ':.-.~~ ··:,,".·>-..

that parties file and exchange their s~eletgri, s~~l$issions before

the 15th of September, 2015 when I fixeii~theJil~~ter for hearing.

These orders were duly complied with a.ni.l · ffi~ clMttter proceeded

as scheduled on 15th September 2015 ig~"Wh?-t•i;.'l3J.ust admit was < -

a long protracted argumentation whici{saw the Court sit for

almost six hours with only a break for twel]ty minutes. This was

a sacrifice the Court made in order to dispose of this matter

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which has attracted public anxiety and interest especially the

children in public schools and their parents.

9. Mr. Obura in his submissions before the Court identified the

folloWingsi~sues for determination by the Court.

(a) :.Whether the Court .has jurisdi~tion tR .~n\~·rtain the present petidm:).._

(5) . Does the I?~tifion raisf eonstitu,ti~~hl issues?

(c) Whether th~ ·'.i~sues··~·;;.tli~·.pr~~bttt petition were determined in p~tition no. 3 qfc20~i:~. . : :. :· · 1:.·.•; >.

(d). Is the righ;f~ strike "':~~~~~f~;lj'i of the C9nstitution absolute. In othJr words doeR arti<;l¢:.~rfJ:Hfii1e':'~onstituti8!;J. dispense with the

,- -.· 3• •. :-e·7" ~~; ·:·.o·>>?(:>o•·;.!:_·~·.·· . ·, _\

requirement .. t9 giv~ I]ptice 0f·s.tri~e~{~s:.provided under section 76 of the Labour Rel~ti\Dlis'"A:ct? ' · · · · ··

(f) Does the Petitioner have the locus sfarl~r'tJ/~ring the present petition on its behalf and that of the school/goiE,g~bildren in public schools and people of Kenya generally. . ·· ·.·· . y.

10. The foregoing issues as flagged by Mr. Qbura·:~'l;oadly form the

substance of the submissions made befon.~· 1nt:!;;.}:>y Counsel for .·,_ ""

the parties in the matter and Will therefore<~fm.r~dopted in this

judgment in considering the issues :fc)f det~rniina~on.

(a) Does the Court have jurisdiction to entertain the Motion

and the Petition?

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To this Mr. Obura submitted that section 12 of the Industrial

Court Act gives the Court jurisdiction. According to Mr. Obura,

the Court must have jurisdiction to enforce Labour rights under

article 41 of t}le Constitution and to interprete the Constitution

generally. In support of this submission Counsel relied on the

case of United.· States International University Vs. Eric

Rading,{2012) eKLRand.:Prof. Daniel N .. Mugendi V. Kenyatta ~ "''-

University & Othe~s:·(20l3)".eKLR•'f,ML Bitta for the Attomey -.:.., ;<-,,', ,,..., ,,--:-;;:--::

inCidental constitut16naJ.\,~a_~~~.~~,;!j.~~ich ar1se in employment disputes. ..·· .. 2z'\t:· ·

''::}--,-;.,~~)''

"':~~: . 'i}:G'~:1~ ';·.<,·

11. None of the resporlden ts · r~s~~~a~~· ·to the stigmission by Mr.

Obura on this poiV.t.T,:Tl:ie CoutJih¢~~f<?re.rules that the decision

of Majanja J in the USIU case ;,hi~h·:\Va$·aci<:>pted by the Court

of Appel in Prof. Mugendi,s case settle(i:.·;tli~s;'ij'txestion whether "' (

this Court does have jurisdiction to int~t~f~.t~;;.~Constitutional questions arising from claims for preach q~}t11l;[Iamental rights

however such jurisdiction must be construed it£ the context of

breaches which substantially occur context of

employment and or labour Relations.

12. (b) Does the :Petition raise Constitutionalissil~s? .···:(.

On this issue Mr. Obura submitted that his client had pleaded

that its rights under article 30,48 and 50 of the Constitution

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had been violated. Counsel submitted further that the

respondents had violated children's rights under article 53.

According to Mr. Qbura, the strike further violated public rights

as enshrined. in trre constitution. Counsel further submitted

that both sides are claiming rights under the Constitution hence

the Petition raises ·cdr:istitutional issues.

13. Mr. Bitta .•;\:in sup.pprt ·of this~ .p0.!J::.}.t ··.submitted that the

Constitliition enjoins ~veryoAe ins~~;cti~·g· the state to protect and

promote rigl1'ts under it\'fJ~\\ii~~('S!J"bmitted that under article

2d thR petitioner·:hacl>a(J;u~{~~~~~~ZI~~ss th~~needs of vulnerable >> • ,, ' ,, ';:«. ,, ·;.-; ,-,., ' -';> .""-<_,< '·

groups in the.sod.~ty and q~!i(re£i:.~~ incfud~d in this group.

He furthe~ sub!Ilitt~'d that'·· fe~Bff~~~·.·~e pub1iei:$6fficers and have

a duty to protect mlh.erable gr~UP~•·: . - < •/' ,- •.

14.. Mr. Ahmednassir for the Ist respondyfu.i:~•'briz:~·the other hand

submitted concerning this issue that tn~··;~·~~Jition as filed

questions the rule of law. According to Cotl.rr~~~;· it showed the k"···-.

conduct of the petitioner in trying to Jelect whic~.pourt Order to

obey which according to him was an attaGkcori!t2fne integrity of

the judicial process. He urged that the Cpurtpj.u,St be robust in

defending its orders.

15. Counsel further submitted that the present' .petition was a

collateral attack on the judgment made in petition No. 3 of 2015.

According to him parties cannot be allowed to relitigate issues

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endlessly through superficial changes. Mr. Ahmednassir further

submitted that the provisions of the Constitution cited in the

petition do not create a rights which can be litigated. While ~ - .

conceding th~t rights under article 30, 41, 50 arid , 53 can be

litigated 'as Constitutional questions but for the petitioner to

succeed it must however show how these pro~~~ons have been

violated bythe respondent.

16. (c) Were the q~~stibns' :i~,:,1the,~pr~se:I1t petition similar and

were they resolved;tby''t~'¢;(tJ~9i~'~'(i~f in Petition Number 3 of -- ~. • '.;':. " .- ,. :::,~·- - •• < ' ••

:. / _. ._ -,~: ·.. . . (·- ~~- .~-( L "~-~:.:::::~:~~-L<~~~-- :>::"? .. :,~ -~ • • 2015.? In othe'r,woJ:ds is.the;~presel!t Petition res yud1cata?

' . ' .'''~;,. . . . . . ·.)·~i!~·~;:: i . .•. ··~· On this issue· .M:r.,:~.,ob1uta.:;su6lliitt:ed that·';'the same was

;. .) •• \"·'' <.~" ~~" -·";).t:t~-~··,· :.. :·

determined by rrtY·;.rnlY:rlg on 'i'o~,.·,s¢pt~mber, 2015 when I ~ . ·. . :.. . ~· ~· . . . -. . .

became of the view that the Motiod ·:cthd the petition raised

different issues from those that wer~: Bef6te,(Iustice Nderi in

Petition No. 3 of 2015. According to C~u#~~l;)~~e issue of the

strike of 1st September, 2015 was ript befot~,J~~fice Nderi when

he decided Petition No. 3 of 2015. · .. CpuQsel~f~fber submitted

that res judicata should be sparinglM:· rai§e~~\~Xhs defence in <'";"·;

Constitutional issues and on this pint h6~.soilgh_t :feliance on the

case of Okiya Omtata Okoiti Vs. AG & 6:'0th~;s:t(2014 )eKLR.

17. Mr. Bitta in support of this submission stated that the matter

before the Court was in the realm of a public claim. It emanated

from a contract of service between the respondent's members

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and the petitioner. According to Counsel, the legality or

otherwise of the strike called by the respondents on 1st

September, 2015 brings the matter Within the jurisdiction of the

Court. Mr;.Bittafurther submitted that the constitution enjoins

everyone including the state to protect and promote rights under

it.

18. Mr. Ahm~db,assir fof'the; isrtespcn;~:Jd.etit qn his part submitted

that the: subst:r:p:tJ.un bf ,ti1~:Ij,P>etiti(i)~i~i~~· the judgment in Petition

No. 3 of 2015 h~ri¢e ~~)~'8_](lr~~J,\.~~ck. To demonstrate, he

. subm~tted ~at p!!t~IJhs:~t~~~~j;~,6 and.~.8 of the petition

advance same ar~ments as.~~et~;:~~vanced ir{'Petition No. 3 of .. ,, . . ' .. . ,·;!.\'r,;t.it:;;f,·'·'''· . ·.. ,·.

20 15. According to ·c6uris~Ft:';R~?~~f~:;'(d) and;(~) of the petition

asks the CoutttO''·'F~Mie'iXrahd st~~:~h~.'ct~cision in Petition No. 3 "~·~y~ ':/;{'. <. '·~·;,·~. .; :: :, . < "' ::

' -~. ·;:,::\:;.J::>---. ~ ·-. ' . and vacate the Judgmefit therein;· :.~;lt: · Was ~is view that the

v -':-'>)·,'· '.· < ". ~· . '

petitioner had exhausted the ~ourt pr~{~ess:ca§:j'~~~gards Petition

No. 3. The Court should then~fore not allow~~,)tepeat process. ' -·~;·" f . . .

He further submitted that the Court had a cluty ttp stop abuse of

its process especially when it comes ftorn the st~t~. In support of ~ i~ 0':;

this limb of submission Counsel relied on the;~~~ of Hunter V. ~· . - ';';-/. '1.

Chief Constable of West Midlands & Anoth'er(l.':gsl) 3 ALLER '·<. :. " ' ,: • ~'·-:;_o< •

727 and Community Advocacy & Atvareri.~~s Trust & 8

18. Mr. Kiragu Kimani in reply to submissions by Mr. Ahmednassir

submitted that the Court ought to look at the pleadings and the

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directions issued on 9th September, 2015. According to him the

Court should examine what the case for each party is, which

issues are live and which O:l:les were disposed ofin Petition No. 3.

He contended that the issue of res judicata was decided on 10th

September, 2015 when the Court ruled that the present petition

raises new issues. , AGcording to counsel the Cq14rt should seek

to find out.if there is .a strike and if so, W9:~<tll~:f'e notice prior to

calling the s~e ...

19. (d) Is the right to ·~tril:e,t·li;P.:4~~~t~~ticle 41 absolute? Does it

dispense with tb~ require~~~~~~gi~n()tice·'under section 76 of

the Labour Rela{ions Act? ;iv~~: . ···•·· ·:;.·::~.,~,,, ··

On this issue, Nf;r ..•• @'13>-tlra . fci~:.':.th~ J.peti#oner submitted that " -{ ;,,~

, Justice Mbaru had already stated til9:t~~rlipJoyee's rights under

article 41 (2)(d) are not abso1ut~ but c~·~B~:;Xi~~i~Q.. According to ' >' ~ ; ,'''' '~; ,, ' ~ ',, '

Counsel article 25 of Consfitl.~tion lists •. tigM~~~:y.and freedoms

which are absolute and article 41 is not ort~·.6i·t~em. It was Mr.

Obura's submission that section 76 ofthe Lahotir Relations Act

does not limit the right to go on strike.

C, X,~,,

,;,',,

20. The section provides for conditions wb.ich .. rij_~st be fulfilled '\

before a strike is called. According to Qgunse!~.; the respondent

did not follow the procedure under section 7g • of the Labour

Relations Act. Making reference to Handbook on Bill of Rights,

Counsel submitted that restrictions on fundamental rights 1s

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measured against an open and democratic society. Mr. Obura

therefore submitted that limitation on the right to strike is to

control damage a .strike can ca1Jse and those i:nvolved to enter

into dialogue 'before a strike is called. Uncontrolled strike would

paralyse ~nstitutions and the economy ultimately. Hence the

right to go on strike must be balanced agqinst any other

fundame~tEti right sin~e a right cannot .be.,e~~;~fsed if it violates

other right~;:, In suw~ort 'Q£~ .. ~his supfoission, Counsel relied on

the case of Fercy Service$r,~Limite:d',,,v. Dock Workers Union ~,, -~-

~ ',- " '<

Horacio Guido.· kccording·1~.. b.iel, ILO ~onvention No. 87 ~ ,- .·.' ~-.- ... . . · .. :. ,. ·:Z;-,-<\~-~,~~i:~ft;i;tfA:';~-.;;:,~.:·1--~~ ... ··. · .·-->., ·' . '·,~·:· ..

stipulates conditions whi~l:li~riiij$t:.:lfj~>riiet wrior to calling of a '. ' ·,:''

strike. The • corlqition§.·:;rriust;· be reasonable and there is an

· obligation to give prior notice as ri#t of the standard rules

accewtable to family of nations and Ken),'t:l, .. ml;f.§t not encourage

strikes at will even when theyhurt other paitie~1~·:\ .;,,:r;;::-~, ~

' •• ~ --'7<' :··t:>

21. Conceming the present strike, Mr. Obura su~p-litted that the

right to strike and the children's right. t0 edtadation must be "';··.~.<

balanced but according to Counsel, the <:;hildren's right to

education outweighs the teachers' right ·to' .'go on strike.

Concerning notice, Counsel submitted that proVisions of the law / ~ ."

have to be obeyed unless rewealed or declared unconstitutional

by a Court of competent jurisdiction.

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22. (e) Is the current strike illegal?

On this point, Mr. Obura submitted that Lady Justice Mbaru

had already' declared the strike unprotected · for want of

proGedure. Accordi:r:1g to Mr. Obura, the current strike is to

compel the petitionetto pay the award made i:ri Petition No. 3 of

2015 hence the strikejs being used by the;:respondents as a tool

of f!Xecutio!l of a Court's Jqdgment.

... . .. -

23. According td{ Couns.el, ~!~~4';?Al:;:·~q~· .. ]b~ Court Rules provides for ~ <. .\ ,_ • ~ • ~4::-- ., -~\;:-~L~5;:\~~~}~~t~i~~~t~;~-'~::~':~-:-}} ;-:~~

pro~e.~lure ,qf ex~cutH~n·))f~ · t.J:i.S¥:.~t'W:udgm~:r')ts.c The respondent . . .. ~ '--·"' ;-;"·}~~-- ~;:Y,:t>>--~)'i• ~· ·. '

should . therefore .. Jallow .thes~:~~~~.gutiop proce~ses and strike is " "· ' ' . . <~, ~~;~-:?:~--~~:::-~;~~~-~~:>·~>:\:,).~- "'· '·.·· : . :>":

not one of the means. of e~e~\t:itin'tft4~.:.C:rourt1s Judgment. • .·" ' T,: .. ·;<·::f.-_~

24. Regarding the issue whether the curre11t stti:k:e is a continuation " ··<- . . .•

of an earlier strike, Counsel, submitteci.;·!n'al··tfl.e 5th January

strike was called off and consent recorded bi'efore"9N.deri J ending

the strike. This being the case, Cqun$el S::t.Iptnitted that the 1st

September, 20 15 was therefore a hew :s.tH~~c~:~ased on new

issues and should have followed the procJ~du~e ·~e! under section

76 of the Labour Relations Act. ·

25. Mr. Paul Muite, Senior Counsel for the 1st respondent in

response to Mr. Obura's submissions contended that the

intention of the present petition is to have the ongoing strike

decreed as illegal by the Court and teachers ordered to resume

12

work. If this is achieved, Mr. Muite submitted, the Court would

be assisting the petitioner and the Government in disobeying the

Court's previous order that the teachers be paid. The Court

should therefore not countenance an abuse of its process.

26. Regarding strike notice stipulated under seytibn 76 of the {' ~

Labour· :R~lations Act, Mr. Muite subtilittetl that Labour - -' - ' ''' ' ' --, ~

Relations A<;t was a;~G07" l<;gi.slafion which predated the current

constitution~: AcGordirtgJo.(gouns~{\t,he~efore section 76 must be ~ '~ >- ~ ' •' - • ,~

interpreted in line. with.~ s¢Gti~J1;:~;~f'~'oof the 6th schedule to the

eonstiJfution in OJ;iier''to rerid~~H\~J Dot. n~cessary to give notice

before a . strike is '';called. Nip;;.*1M~it~· .further:· argued that the ,_, •'J'>

backgrouncl.;tothe :burrer,tt i~t¥1~~~;1~~~"l.lld be H~~en into account « ' ': • • ~~~- :?!,("' " '

in considering·· w~et,~·~t,,;it wa_s'·.:h:~G:~~.~~ ;~p issue a seven days'

notice as providedunder secti6~'~d"HE·th~:~t~l:)Gur Relations Act. _,_._. ·-'~~:· •''"

27. According to Counsel, if the Court declares .:tJA~'S~trike illegal for

want of notice, the Union (respondents) ·~~,~\ssue another

notice. The Court would have then a~ted i~:;~h. It was Mr. > - ·, - <.~--~ ·~'

Muite's argument that the notice was · me~~ to give the • ','%

petitioner opportunity to consider whetber,·:J.o 'qoncede to the

respondent's demands but the petitioner alicf~,~~e government

has stated that it will not give in to the respot,ldent's demands .. hence notice was not necessary under those circhmstances. In

support of this argument Counsel sought reliance on South

African case of Transportation Motor Spares V. National

13

Union of Metal Workers of South Africa & Others

(J2498/98(1998) ZALC 71.

. . 28. On the issue\whether the current strike is a new o:p:e, Counsel

submitted, that it was a resumption of an earlier strike hence no

new notice was necessary. Counsel further sp.btnitted that the

present·strike is not for~~nforcement .of th~.J~dgment of Nderi J

but about• clf;mands•,i;nade })y .the t~aGh~r$ which have not been ' ' '"\\'.•; •':- '" <' -J:< > • 0 : ~."•'""'~ ocA:

met whicl:l i~cllJcl~ .e~ecut19~~·ar~:e.~~~-.CBA and if the petitioner

were to. col16ede to~ thes·~/i~-- · •·».·~;:~~~;~ould end and there would

be no more· strikes.

29. Mr. Ndum{)i for the:2nd petit:i:<)fl~~':;~.Ubmitted on.)his point that a

30.

.:r- .' ~' .· ,:··:-~-

strike notice \vaSicc_ .• trssaed' al~~a~gg · Ji!tnecessary under the :, ,,,,, ,·" .-r;·... .,,, ., .~. --::::L>~

current constitution. <Y., "' .c • ' ·, ~ ~:~· ":: < ~' ::_ :··'

'f··.-< -~:~.::.J:<ii'i:':~:) ..

Mr. Kiragu Kimani

·A~ • ;£$}, ~' ~:;::~~~f~~~i1~~' c'

to . ~:~~ . lOllS \L\·<1' '•'k ·,:;§-,:>~ ::---t:<::i

by the

respondent submitted that on 1Sth.January.;""2W.~i~~\a consent was

recorded calling off the strike which. _was >th~~-\:~ngoing. The

December strike notice therefore ceased lbj:~.xis'tZ~·-i' Regarding the

requirement of notice, Counsel submitted th~t Upder article 41 r.·:--'. '·. ·;~~' ·~::: i·· • ,~ .·

of the Constitution, every person has ~a rigb.~m:to fair labour ' . . ' . <~·l

practice. The article does not provitf.~:··;now't~··g!le goes about

exercising these rights. This is within t~~J;}fo~i~~e of the Labour

Relations Act hence there is no inconsistency with the

14

Constitution. According to Counsel, the right to notice before

calling a strike is also a fair labour practice.

31. Mr. Kiragu,J-ilrther submitted that the object of notice was to

allowthe,addressee to avert a strike by looking at the demands.

Section 77(7) of the Labour Relations Act alloW~;,;an employer to ', '-.):<

come to 0ourt and seek iq.junction reli¢f.'' 'Jn prohibiting the

present s,tfike, the, Court )would. nd:t I>e staying Nderi J's '-.,;;-.;

Judgment since .Jh~· Judg~~:ttid :.m.B:t:) .sanction any strike. Mr. 0 .' , c. • • • -" -~ .,< ~

Kiragu further concurred .witH,JMr;: 0bllra's submissions that the , , »> ; 1f~-:i2\~~ ~ _: 0

. pre~~,pt str1~e. is'1 Ior<:,,the·: cnfi:i~~~lrier;t~· .of,,~deri J's Judgment :e·~~t·~::·· .. , ·~~:77

, • ;··~··f which is ,u:npn:>.cecl~rBJ; sinc~~1 redress ·a partY carlhot be" 11~·•

·~; '

\<i+$)tn·~ law Pl'&ovides avenue for

. ;fci·rl:fse ·a·a1ff~~bnt modality not ;·''···'

provided for in law;·.:e<~@:unsel f:urther §U,~mitted that a strike can

. only be in furtherance of a trade di;p1J.t6'anc:t.7,ajudgment is not a '~ ~ '

trade dispute.

32. (f) Does the petitioner have the 'locus t~~~iftii~~·g the petition

on its behalf and that of school goiiJ.g,chfJ'ttk~~;.and people of ·~,;f. ' ··~ .. ~, :. '

Kenya generally and as a corollary is the 'p~f~tioner guilty of

contempt hence should not be heard?

Mr. 0bura submitted concerning this fssp.e tha~;the petition was

brought pursuant to article 22 and 258·of·the<:f6nstitution and

therefore confers on the petitioner the right to bring petition on

behalf of the children. According to Mr. 0bura the petitioner

15

receives funding from the National Treasury and this follows

certain procedures. The funds have not been availed to the

petitioner yet the respondents have engaged In public

demonstratiOns accusing the petitioner of refusal to pay. Mr.

Obura contended that you cannot force an employer to do· what

it canno~ do as to do .Otherwise would am~u~~,f~\servitude. Mr.

Obura fucrther complaine&,t1:J.at the respo:r;t~'e#fswere aware that

the petitioner had appeale~}:~gainstth:e]oi;tdgfuent in Petition No.

3 of 201:.5~ Therespondent~;cbn the'o.~~er hand have commenced . . .-

enforceme~~b;;proceedihg~0~~~1fe§p~ct:,pf~udgmen t in Petition No. 3 ,,_· .···.·;: "<'1"1>'~. ·.,".~ 0 • • •• ••• •.. ~~

.· yet'th,ey ~e:also·~on .. str:ik:e.~·''A:f~:B,~!~iri~ tq.J)<?unsel therefore, the '· '> ·';<' ;·';·c'. "-< ";"/· "'::,->'

strike is intended t~ fru~tra~~:~fi:~;;fi~titfoner's ~ppeal and stating

its position inthe''~nforoe~~~~~.:~~;~eedhl~s~/~yThe petitioner's ~;;. . ".::~; '~ :.,"·.

_,_c.:')

-right of access toziQo~nt}'J.~:r'.the~~fore,r\;l;i}:~:~r threat. According to > ,. • • " • ~·',<>i>'o"i. '"

· Mr. Obura, ignoring strike prb~ed~t~~·'~i~l~tes public interests.

It seeks to compel the p·etitioner t~ ~~~Y:.·tl1·~~ award without

following governments budgetary procedur~~~

33. On the issue of contempt, Mr. Obura s{iJsili:itted that no . . . ' . . '·~ ~

proceedings have been commenced in th~£ t~esp~~t~ · · ,,. c:·.· z-;·

34. Mr. Kiragu in support of Mr. Obura's s,t.fbmlss{dns stated that ·~·.'

article 237 of the Constitution sets out the functions of the

petitioner, article 249(1) (c) provide~ for promotion of

constitutionalism by the petitioner. The petitioner to this extent

have the locus to bring the present petition.

16

35. Mr. Bitta for the Attorney General submitted that the Court had

a duty to protect the rights of the children~ According to

counsel, the 3rd term in the academic calendar is supposed to be

ongoing. It will terminate in life defining examinations.

Therefore time lost by.lhe children cannot be coinpensated.

'i.'', l\,~:'-,- ~}:-

36. Mr. Ahmedhassir (or, the .\Jst respgt?;d;et'l-t ,on the other hand

submitt~q thabthe ~etitio~6r' is ~;~·~fe~fure of article 237 of the

constitution)·and undef ahticle:~ii2~i:~.ii is a body corporate. It

theref0re as suchw Tacked··· ~~¢R·:.J'ffridical· >persona to file a ' '; '-~ :';.::c, - ', , , '

constitutional petition .. Accp~<d:i~·g;~'fi<f>·.···Counselr~·Bill of Rights are

rights zn persona. 't:hider ~~i;~Y~i;~~~p th~ p~t'itioner is a state

organ and any p·~f,\:Qf(fhe Gov:eJ:1Ll.!);ietl,tr cannot litigate bill of -, A ' } y ' ' ' •''[' :~

rights. According to Counsel,. Bil.f~'~(.iijghts,.~e only litigated

against the state and not vice versa. Irl ~·~~~H~£f:2 appreciate the

constitutional anchoring of the petition, M~.:·A~~ednassir stated

that under article 22(1), there mu$t be a~~~~~~#, then a right ' '' ~ ·, ~<- \j~),i' ~

and which right must be violated. Further, ·~nd.~1r· article 21 it is } ' ~·, ,_, ., ,'·(,>~,,

a fundamental duty of the state to protect, ol;>~:~i:ve and respect

the Bill of Rights. According to Counsel~ a sJ~!eEcannot litigate

over Bill of Rights. Regarding litigation;··over tl(e rights of the

vulnerable, Counsel submitted that prticle.. 21 (3) of the

constitution as concems rights of children as vulnerable

members of the society can in event of violation thereof only be

litigated against the state and not by the state. Regarding

17

allegations of slavery and servitude under article 30, Counsel

submitted that no empiric,al evidence had been laid before the

Court in support of the allegation in any event it was profound

that an organ of the state was alleging that it was being held in

servitude.

37. Concerning, compulsion' on the petitioner',f(}:;fl.;8'\vhat it cannot

do, Cotinsel submitteCl tli.~t the petifiqpef\ d<:>es not generate its ' :, -- ~ ' <,

own funds and ~ere ,~~S}~~:ievid~!tlte, ~at the respondents were

compelling the pe~tioncil',:i~,,~9i,~a~ 'it cannot do. What the

resnondentk wer<s;,,s~'~kingt~~~~~h~p~6t for the, Court order. In

other words, hqldihg a. patfyif~d';it~,\:ciwn barg~~ and that cannot

amount to slavezyL ot seiV;itii~~.;:: •.. 'Cohcerni~g the rights of

children under a.Ftlicl~;5.3; thes~ e>nly?-pply vertically against the : ' -.:· •._ .· '-·' •• 2, ·,; ·, -~) ,'

state and never horizontally. Couns~hfl!i,r!Jiel': SJ..Ibmitted that the

right to strike does not ~un against state,:~0y~£~~'gp.ty . . ' > c::>: •" · .. ·x<:.:

' .. "\~:i.;f~\:~~~1;\t~•\} 38. Mr. Kilukumi in support of Mr., Ah;rnedn'~s~w!s submissions

~. ',o;;,, "_., .. ··--.--:.~"''

stated that the petitioner had no right qf ~t;i:~}i($nce before the

Court, since they had disregarded a Court orde~;J{~Relying on the

case of Hadkinson v. Hadkinson ( 1952') ALLER 567 Counsel

submitted that the issue of contempt d'hu~f )fi~' resolved first

before the petitioner can be heard. 1\.ccord~))g to him, the ·,·<-,~ ·y~;;-,;

petitioner must purge the contempt and obey the Court order

regardless of what they think of it. Mr. Kilukumi argued that

the continuation of the pay dispute between the petitioner and

18

the respondent has been camouflaged as a new suit and to

support this argument co:unsel relied on the case of Ramesh

Popatlal Shah & 2 Others v. National Industrial Credit Bank

(2014) eKLR and Econet Wireless Ltd Vs. ,Minister for

lnformatioU: & Communication of Kenya & Another :f2005)

eKLR. Mr. Kiluktimi:{urther submitted that under article 10 of

the Constitution, rule· of law is one of tq~~rt~tional values and

every public officer' is :undet .. duty to obserVe national values.

Accordip.g to Co:upsel, .the'I-;~·~.1\Vas p.b'l:'i¢ed to approach the Court

if the orders'h1ade ·will rl.~~~~~.4~J;>$~~·e~··:·on this point he relied on :_~--~. • ~ ••• ·' -i' ~.~1~-~:{.:f~~bf~~;,;~\~ :_~:-~~~= ~,:~~/ ~<

the,1 ~.€fse of :Judiclal:·Service~~l~~()·m.;IDissi()n,,.v. Speaker of the - . ,, . , <D~~-. "<. < , · ... _;_:~~~~~~ -~~;;_{<~~~>::~(;)~,.:·:, .·.~··::-~::::·:;-~· > . ~ ·_,··,.-~?

National 'Assem~It & Arl.ot'liel.::t2.0.Ic3 .. eKLR.¥:! Counsel further " > c• "':, ":.:}'("·;~;._,~J:;"f-:-< .' .:..' ·. ~ f •

submitted. that the' Court .. ifiij/$t:··~#(5kto 'rutl';()f law and give ; ; ~ . >." .~ •. ~ '

justice to all. It was:.ihis · .. View that disdbe~ience of Court Orders "" ,.· ". "' ,·

. \ . . . ~. '-~::;:~}}~. ,.·

· undermine rule of law and akin to a;ftlh€raF•for rule of law. If >, •.• ,, . ,:·{"'>>" \''';?·:.;; . . ~· .

these were allowed, public confidence intl:i!~·~:01i;law would suffer. ~ ·-;-..._o'/c~"~- -,, "''"·'

L

3 9. Regarding article 53 and read together ,\",i'trf:f~~.ction 7 of the

Children's Act, he submitted that the gov~ri'f~~~t: has a duty to

provide free education but not teachers. tp" :f>r£~~ services at a

lower rate. Hence according to him, it w~st1I<:~Lgovernment and ,: +> . -_ ~, "- ·F1;--\\ .:~-. ·_.·.·

not the teachers who was violating the I}ght.s · df;jhe children by

not paying teachers.

40. Mr. Ndumbi for the 2nd petitioner on his part submitted that the

issue before the Court was to make a distinction between article

19

41 and 53 of the constitution. According to him, the Court was

being asked to remove rigl:J. ts under article 41 by seeking a stay

of Judgment of Nderi J in Petition No. 3. He submitted that

there had been nd utterance on the petitioner's obligation to

obey<respondent's right as ordered in Petition No. 3. Aceording

to him, the correct application of article 30 wo~ld show that it ; '" A',~:';;,: i i' .f

was tHe petitioner , who was holding ~tJ;~~i·,,~;respondent's in

ser:vitude . .c Mr. Ndumbi su]J).mitted .tli9-i···;~he.:~etitioner has failed ; ' ' ·' 0 -,;: ~. _,

to disclfarge its duty,und~farticle·24~(1) of the Constitution by

faiHng to coinply with •t]j~~'~;r;Q.~rs:~~.~Nderi J in Petition No. 3.

Gounsel submiH.ed umaf .~~}"·J>eBtioner,,e6.sought to have

successfully appe~ed ~d. s~l]:gl:J.t):~h:a:~obtaih¢cl a legal stay but > ' ':;:_ ·" ~~-;<;·; < ,>_ ...._ - -~ ~,= ~-

According to· coutj;~~l~;;j:{if]' the order~ .. " .~p~gp.t were granted, the

. Court would be put .to. ~idicule. co..:X~~~Fiimr:fher submitted that ; : - .. .. :·.-.. ~· ~.; \_

the petitioner had a duty to uphold\ ·tl:J.~~HRrl~ of law. The

petitioner, according to Counsel had a du~~.t9<uphold industrial

peace in order to ensure the children's right$r~~~t~·gsafeguarded.

41. Regarding the award, hence the strike, ·~d~~~~i,·;ubmitted that "->, -·i:'-. . F· ·

conversation about the issues in displl:~e :ih:.i·the petition and

judgment in Petition No. 3 have sppnn~d o~et;·'a long time yet • />"" .. ;_

nothing had been said why the respond~nt's demands were not , , ,

factored in the budget. According to hi~, the Court's order in

Petition No. 3 was just like any Court Order.

20

42. May I at this point express my gratitude to all Counsel in this

matter for their insightfuland at times, very powerful and fiery

arguments that have 110t :only enriched my judicial mind but

have served to elucidate various aspects of the issues, of law that

were 'involved in this petition. I must thank them for their

industry and the high level of research tll~Y must have

undertaken to come up. 'Y:ith authorities'~'W'hich they thought ;', ', • .·.:. :. \:,· :-·c·,. ~/'~· .::> • .··\::q:;.:;"\.>~:~>;~,~~('~~~~ ..

WOJ.;!ld cl;ssi~t. the C~J:;trt ,iri,,.'gtJ),prec~qj,i~:g.t:zt:f:r~~dispute better and ,. ,.," ;; Jt·S '· ,_-i "" '""."ZK,·' ;·, ~ ~ ··~ \:C:: "'~· • ''

reaching. a fait .. determina#i6h. r:rjl~~~Jii~t have had time to go . ··.~ ·.•· <. .·: :·: .;,·<:~:::~_y'·

through all of them buf'i~f;t~;tis:I):ot\4Siay··they were less important.

'Fhat having ·beeri sal'Ci} havi~~;~~~{~~~d ~11b:>missions by Counsel

as ab:>ove th~. Cou,rt'would pt{;fge.~d!,~tFfd~der itsilf on the same as ~, . s --.. ' ~:_· ..

follows::..

· (a) Jurisdiction of the,:. Court to he3.i\tllli~1 Petition.

As pointed out earlier, this issue although.iq~;ri~f~:~d as a ground -~<- ·L··"··· : ;~ .... ····

of ob:>jection b:>y the 1st respondent, JIO subnj¥s:s;ie'il"was advanced oi- O,Ao" ,, '', • c-' 0' • .·.~•;

in support thereof and the Court becci.riie ~f th~:··~~w that it must

have b:>een ab:>andoned with the consequdbce tb~¥,.~is Court does

have jurisdiction to entertain the prese~t p~tltiQh. 'Fhe Court :::' ~~\:.;_ -~: .:'--.~: > ..

relies on the Court of Appeal's Judgm,eht iri:'Prof. Daniel N.

Mugendi V. Kenyatta University & Others (2dl3) eKLR and ':····'·"•'

United States International Universit:Y<V. ·Eric; Rading 2012

eKLR. 'Fhe Court further adds that as was held in its judgm,ent

in Dr. Anne Kinyua v. Nyayo Tea Zone Development

21

corporation & 3 Others IC No. 1066 of 2012 (2012 eKLR), a

claim that a fundamental right under Constitution has been

violated or fair admin,istration procedure has not been followed

in the course of employer - employee relationship is a dispute

relating to employment and Labour Relations hence Within the

jurisdiction of the Employment and Labour Ryiations Court to

which th~ High Court has peen denied jtiris~fict!on by virtue of

article l6S(5J (b) of·~~ Con,stitution. ' - ' 1 ·' . < t · ..... :C'-~ .,,,

(b) Does the Petit'ion.· tttl~'ec,~J)~~t·itlit1onal issues 'i •. ~: • •• :':tr-·,·\, '.; .. A·~,','t~~,~,,~i<"···\.'· ,,

"'~ ~ "' ~ "' .. --., }>.~:_:'.:~):

Having considereJ;i;stibmissfg~~~;~;~k~.·:C~~nsel f~r the parties on

this point the Court is of th.~:·w8~'that the p¢'tition does raise

constitutional qu{!stx:&n~. ·· Thf p{Vtitioner has alleged that the

. right to strike under article 4'1 (;) (d) :i;s ~6t;.?-bsolute in that the ·_, '···o: . ~ . ·>. {:-Y}_:::.).ff

right must be exercised as· stipulated>u{\de:Pc:;~~ction 76 of the ~· :-~,~~-. ~~~ ~~;:;~\~;~:1T;:{~ 1~~~,~~~~'i,

Labour Relations Act and such regulation<·~"Q·~§;~~ot in any way

derogate from this constitutional right. Th¢.f~~:~W~ndents on the

other hand have contended that the requir:el:ll~i-J:t~of notice under

section 76 of the Labour Relations Act priort9 g9ing on strike is

negation of the right to strike under .·~tlple ,41 (2)(d) of the ,~· . " -.:: "'-~< ''-:"'· . (.

the respondents strike action seeks td frustrate: the petitioner's

right to fair hearing in the pending appeal and enforcement

proceedings pending before Nderi J. These are by no means

22

ordinary questions of law. They touch on substantive rights and

obligations recognized by the constitution. This alone without

more qualifies the petition as a constitutional petition. The

Constitution is the supreme law of the land and any allegation of

violation or threatened violation of any right whether perceived

or actual recognizea: by the constitution must of right be

entertained by a Court of",90mpetent jurisdiction and a finding - ~- "

on the validity or otherwisepfthe allegation," be made. The Court

cannot e;c facie)'t;efuse an~1egati~n, 1pfviolation of rights under f',:_,- '>-

the Constitution withoutt~~~ltey~l1;g,0n')nerit. " -- r , , '"-, , . -, : ''" , ~'' "~ , .. , . -

' ' ) ~- '/.v,~··· C;',; \' , '

_<0:.._~<<''' >o.{ ''\' <j • ; ><.h

,·~;>' \;~~;~ .·' ·.·)

"'?i:~:. .· ~t-· ' ·.· ~: ~~ -~_·, . . ~~~-~}·:~l~t -~ :~-~:::; ·,·~ ~:· f_::' £ __ '

(c) Are tbeJssues,in this R~fi~:igJ:lc+Same as those determined ' ·"'· :- )'•/· ·'' "-::'.• .·

~ '., }

in Petition: No.3 ol20l5?ih ,:,";

This question was partiq.Ily determine¢1'"Wliea an 1Oth September, ; .. ~ •,· ,; ·.. :::_ '

2015 the Court ruled that it had jurisdictH:>~tt:r:hear the petition

since it was based on the st~ike called by;,tiJ~?,~e&pondent on 1st

September, 2015 and could not have be~~~"Wi,J;hin reasonable -:<" -".· :-·. :··'\~· .. :.

contemplation of Nderi J when he d(!livered';~s judgment in

Petition No. 3 of 2015 in June. The Couftfurth.~r'Jound that the

petition concerned the dilemma by the ~etitioner over where to

raise the funds to honour the judgment o( fh~, 'Court given in

Petition No. 3 of 2015 since the petitioper was bound by the

Government's fiscal policies and budgetary cycle. This second

limb of the dispute as much as may appear to be an offshoot of

the judgment in Petition No. 3, it is not an issue that was

23

decided then. All the Court did in June was to award the

teachers as per the judgment but no directions were given on

how the funds would be. sourced. In any event no Court would

concern itselfwith how a judgment debtor will honqur a decree

against him or her. To this extent this is totally ,a new

dimension to the dispute which the Court>J,\fotes is ·being

addressecf:by the enforeem.ent proceeding~j;'~~fbre Justice Nderi

hen,ce the Gqurt will':~ay rio piore.

The Court h;;ts ~o11:~idered · sfi:~~Xl~~i®n~'.by .Cou,.nsel on this issue

and is of the view that·~6.·~d~k{~:fi~~~~h1bt~: ·. TJ:fe,.outer limit of a '<-4; J

right is the obligatrh'VI:;~t·o. exercise .tn~t. right in a way that :' :-·. '; . ~-'"<!'=-'::;_;\,-':~ '

respects rule of law and rights of'oth,efc persons reasonably

affected by the exercise of such a ;igk;t. .For instance the

freedom of speech is check-mated by the·<~~tY'.~ot to shout fire

in a crowded theatre when there is .no fjre sih€€· the consequence

of such a practical joke is likely to be;gl:aye .. Jnfqther words the '-'? .. ' ,c'>

recognition of rights under the constitU:ttpn .qr international law

has never been akin to licentiousness.

43. The Constitution under article 41 (2)(d) re~ognizes the right to go

on strike as one of the fair labour practices however the article is

silent on how this right is to be exercised. This is left to the

provisions of section 76 of the Labour Relation Act since the

24

Constitution has never concerned itself with procedural issues.

The contention therefore that in exercising the right to strike

under article 41(2) (o) a party can ignore the procedural

provisions contained in section 76 of the Labour Relations Act

may not in all cases b~ correct. But why do I say in all cases?

44. The issue Of teacher'~"pay and strikes con¢ernin:g the same is of

loc,al notod~ty. EY"erypne' especialLy jn the education sector

including children ~d th~ public g~1.)eTally can safely be said to ,, __ , --;·.

know about the ever feste~iilga:J;tr~.bi~~,~between the teachers and ' '" . ·- .. , , ~>-"" £ ·.,.-;::; :>'=:\.>;>_~L;r

their ,~inployer, tile T~acher~ s¢ciJ~e 0gpm:r;nission and ultimately '·,, .> '-·/:-f\'' ,--.>-~·-,

the government. The ~atter;;'g(:t~~@fd:e'rs' strike has become like ' ;~:-.(;'~,-' ' ' '· ' " >

a ritual~ every Presid'ent sine~'Mt.Mcir, must g6through while in

office. From the;,~rff1r~df Ambrose '';4-dPmgQ, through to Francis

Ng'ang'a, and the late Pflvid Okuta ~0'~"~'6*: Mr. Wilson Sossion,

the mantra has been , "we :Want de~eht,{~~il(aries for our >< "· " t'''

member$' and the signing of a Collective Barga;j,J:Iing Agreement

to provide a framework for future negotiations. ,·!.,The petitioner

hence the Government on the o~her hand J;i~s not yielded

enough to the teachers demands arguing. ,that they are

unreasonable and if acceded to would pu§]l tg, unbearable levels, · ..

the public wage bill and the governm~:rit's provision of other l>:~:·_

essential services and development ageif~~·

45. While I will return to the foregoing later, the Court observes that

the substance of the judgment in Petition No. 3 of 2015

25

consisted of documents, and submissions by the parties. The

Court further notes that the proposal for 50-60 percent increase

was based on proppsalspresentedtothe Court oy the petitioner.

It is therefore. understandable from the respondent's view point

that7 the omission or failure by the petitioner to honour its part

of the .bargain to· pay 50-60 percent as propos~<:I by them and

reduced as the awarc:l·of the Court is pr()v;oqati~e and justified

their right to call Jor;s~>stdke: ~thout :J19f:ice. '--'.:-,~~'"- • :~,'.~_:: < ·:r ~~~;.~/ ~,::~:\:.·;:\'·':: .:·

46. In I~dustriai relatiOns tr£at'1!i!r~Jti·~J~~rkers' ultimate arsenal in

bargcrining terms~ ~d\•condi{ig~.~E:.;}-.~;ervice: is the right to go on

strike while the .~triplqyer fl~s·.~··f~~t,~~i~ht to a;llock out. These

rights are primary ahd are:tteeq~~~(J/botli bythe constitution

and ILO Conveht:i~ful.~~ .. aBt:t where·p~ti~~i.tq. a trade dispute have

constantly and c~ns'ist~ntly 'e~~~g~·~· ..• ~&.1;siither of them has

categorically stated its position 'wit~~~~f'l.\~.~y room for ·····.. . {'·

compromise, the issuance of a strike :o~l..~r·i:r'·\~il&ck-out notice < '.;""'· ,: ~" 'f ~,;;.':/· '-'

becomes superfluous. The petil:iqher heietii·>~·d its allies in ~ . r·. >~~>·,·"·:"£

government have since the judgment.in Peiition .. No. 3 of 2015 . ..

made public pronouncements the sum effect qf.wJ;;tich is that the

judgment in Petition No. 3 of 2015 award.i~g:lliP~;respondents a

pay rise of between 50-60 percent will Jl.ot be;luonoured. This

was presumably and especially after the Court of Appeal and the

Supreme Court declined to issue intetint·relie(.pending appeal.

What purpose would a strike notice therefore serve under those

circumstances? Or to put it the other way, would if today, the

26

-----------

respondents call off the strike and issue 7 days' notice as

stipulated under section 76 of the Labour Relations Act change ,>, <

the petitioner's attituqe' of "Can't pay, won't pf.!y?'

47. Whereas notice is an essential requirement of natural.jtrstice,

the doctrine of· '"travaux preparatoire~ In statutory

interpretation persu<;.tdes rme that there ·m.a.y be compelling

moments . s:Qch . as ,£liis ·ol)e when,:~:.'P~Bcedural step may be

ov~rlooked i~ o~der fd safe~ard ,~:;§~~:sf~tive right. Parliament - ' ' '-?-- --"'

in enacting ~ection; 76· ()·tmffi:~~.:·' 4:~~trE.elations Act contemplated - 0 ' ' ,,._ ~ '\';;;.? '' > -,_~, ,·\ '• -.; <>;·-;)·:o,·-

a srp.ooth ihdustrial.'r'elatiori~ ~e;'parti~s .to a trade dispute

engage in gctod falt4. ~q ·rtotf~~~~;~~ati~ o btruiiing herein where

the petitioner and fhe ··Mihi§t'&~!~~.~~~i~·;.s~ppos~ti! to facilitate the . '"2'' ,.·

<- • ~.~

conciliation ofthei'i.~~raGie .• disp.ift~~ ·h~s sl11ade his stand known

. concerning the very dispute.

48'. Under article 20 of the constitution a do!l~t.li~,.enjoined when

interpreting the Bill of Rights to ,~dopt ~,;;ji:rtt~~pretation that < ·' -~ ; ·~ .

most favour the enforcement of tb~t right· •. ~;~; fundamental . ',. ~,·· '-> . ·.

freedom. Further under article 24(1) q;. rigpf·:'C>t fundamental

freedom in the Bill of Rights shall not b~: cb.nsfri..led as limiting

the right or fundamental freedom unles~~ the .. pfOvision is clear .. ~ ,'

and specific about the right or freedomto be•<limited and the ;--:,,: .·- :

nature and extent of the limitation and further a right or

fundamental freedom shall not be so limited as to derogate from

27

its core essential content. The foregoing having been said, the

Court declines to pronounqe the current strike as unprotected. _

49. Before I exit the is~ue of the right to go on strike, l would like to

address tbe argumept that the respondent were usipg. the

current strike to enforce the award in Petition NQ~.--3 of 2015.

50. Having becqme of tl:l_{{ view_,that the ¢(),tpin,encement date for the

present.strike was 1 ~e Sep:t~mber,,-2lt)JEf, its cause is conceded to

have very close connecti€),1;i;stP~Jl:t.¢:i"tl~gment in Petition No. 3 of

20 l5 ~in that .. if ~as ''1lheX~~~~~~f:fe{us!tl by the petitioner to ::~=~e:t}~::1::~:~~~~~;~ ::;;~;:er: :: =~ their tools. -H:oweir-~'f:iJ,cl-t~cknbt·-6~\ s~1kl!-:to be . an enforcement

- ' -- ' -' - - - - - -. ·--- --,-,:-~2'-t-' -y,~,~·-"

51. From the respondent's perspective, how~Ver, itmay well be said t'-~ , ,'L ,,

that the strike is being used by them ·--a:~_- a tool to compel the

petitioner to honour the judgment in Petition No. 3 of 2015.

28

52. Section 76 of the Labour Relations Act provides as follows

concerning strikes:-

76. A persoh may participate in a strike or lock-out if:-• (a) the trade dispute that forms the subject of the strike or lock-out concerns terms and conditions of employDJ,;ent.

53. Furthe:ro:section 78(1) oLthe Labour R~latiotl.S'~Ctprovides:-

54.

78 (1)' .·~() pef~on ,shall.tak~.''~~l"~;;f'~ a strike or lock-out or in ·any. f::ondu.'~t iti cQp#ifupla~t?J;ii{;.·a strike or lock-out if -

(a) an,- fu\\lt; ~o~~~;~J~,~~~collec~ive agreement binding on that~,p~r$~n prohfblt$:·~ st~~J[e orlo~k-out in respect of the Issue; in di$pute~ . ·: .. ' " .. ·· .

>' f '"'; - ~' ; ~:~

(c) the partie$ .h~ve ;a:ir~~a·;;t~ refer the trade Industriili,so~~t or arbitr~ti~n~. · ·

k -" ~ ."~~~"'<- ,'"'~ :\~' ~ ~ ~-: ,_;;;'

·- '-~if< ',~

, __ --:r ~ :,,;:·. >:. <

dispute to

The dispute between the petitioner Jn~rtl:J.'~ .respondents is no ~ ··' _;.-,~ r~ ~'""

doubt a trade dispute hence it is qii~F~'''}~wful for the

respondents to participate in a strike in regard thereof in order • .• • ">"""

to agitate for the implementation by th~. respond~nt of an award

which they deem concerns their membe:r.s.tettri~;·~d conditions " _. -

of service. Further, neither Justice Nd:¢ri in His judgment in

Petition No. 3 of 2015 nor the Court of?APP,e~;·.prohibited the

respondents from calling on their mem,q:e:rs·to ·go on strike over ·:L_ ·-:~~' ·'·:<\·

the pay dispute with the respondent as at Ist September, 2015.

Further still, the disputants herein namely the petitioner and

the respondents have not agreed to refer to the dispute over the

29

implementation of the judgment in Petition No. 3 of 2015 to this

Court in order to bar either of. them from engaging in any

industrial action as provided under section 78(1) of the Labour

Relations Act. What is before the Court is ·. a . con tested

enforcement proceedings which in itself is a furtherance of the

dispute between the· parties and not an agr~~ment that the

Court arbitrates the <:f~spute ..

55. From the fott~goipg,, the: ~~~urt;)~~·~,~f"lhe v1ew that there is

absolutely nothing' WI-ori:g a:Q,~';JMF~~:~~~t in breach of the Labour ,_:._ __ -. . "' ·\ ~~-: .·· :._.~.~~:~:~;~~>~~~-~~<4;~~1;:;~-~1/~· ~,~:~r~~y: . . .

Relati~ns Act fofJhe'~responden,t's mymbers ;to go on stnke to

compel the petiti9~;~r t9 hon:o\J;s~~~~~iJ.a~ent in Petition No. 3 of

2015. When the ~0urt of·j'*~~~~t"d,~clined t~·· order a stay of

execution of thet·~a·j.i(igfuent mc(Pet~ti~il. No. 3 of 2015, the

respondents were left with the libeif.y't:t9';,~sg,any lawful means

recognized by the ConstitutiQn and;i~b6#t"'f~Y:lations Act to ;Z ' ~ '; ••• ·., •• '

agitate for what they deem as their m~Il\~~t~~.0entitlement as

awarded by the Court in Petition ·Np. ~ of ;.~]J~L;;~·~The appeal by

the petitioner is akin to any civil claim."~here ~~jgogment debtor ~-·~- ' .. •' ,.;• ~ \'

is in dilemma after failing to obtain a stay of~.exei~tion and must

grapple with the issue of whether to settf~ the.qecretal sum and . '~

still prosecute the appeal or pay . an~; abatl.d'cDn the appeal

altogether.

30

56. (e) Does the petitioner have the locus standi to bring the

petition on its behalf and that of· the. school going children

in public scho.ol and the people of Kenya ·generally?

As observed earlier in this judgment, Mr. Obura for the

petitioner submitted regarding this issue that }he petition was

brought under articJe 22 and 258 of the;>.Qonstitution which

COil.fers on fhe pe.titi6ner the right t0 :biing the petition on behalf

of the children in p-ublic ~c,hool~•><'IYlfhKiragu in support of Mr.

Obura's suhmissions' adife·~~;1d\~~.;~~tiGle 237 of the Constitution . . .. · . . . . . .·. •. ·.t'WJl•d~}~,··,t••·f:·?'~\"t

sets .out the. ml}ttions .,.of· t .. !' 'titio(,l.~,F·• ~d article 249(1)

provides for •. t~e pi~mqtion o.~~.g· ... :·.tio~q]ism''by the petitioner ~~\· . -~ J~::::-. ~-.. .}., .. ~~~:rt1\~~!i~~J~~~':,_:.J!?·f:·<~~ y··.. , ~ _:~.\~:~

and to this extent Counsel ~~S®~t~·~ri:that the:P>?titioner had the ' ; .><" . ~ .• " ·,· :,,. <~

locus standi to biiugthe petiti~n~ .

57. Mr. Ahmednassir for the ·1st respondent;:.q~~.}tp.e other hand

submitted that the petitioner. being a creEl,t~~~/Qt article 237 of

the Constitution hence a body corp.ora,te by~~¥f;x,l~ of article 253 . . . 7 •• ·:~·"{-t;:.>· •.. ,.

lacked the juridical persona to file cog~tittf:fipnal petitions.

According to Counsel, Bill of Rights are ngh.ts•.'·t,'P- persona and

the petitioner being a state organ hence PMt ()f Government

cannot litigate Bill of Rights.

58. The petitioner 1s established under 237 of the

Constitution and has as one of its functions, to advise the

national government on matters relating to the teaching

31

profession. Under article 248 read together with article 249, the

petitioner as one of the Constitutional Commissions has as some

of its objects, the protection of the sovereighty of the people, and

promotion pfconstitutionalism. Black's Law Dictionary gth

edition defines sovereign people as a political body consisting of

the collective number of citizens and qualifi~&J. electors who

possess th~ powers of sovereignty and 'ei~f~i·~f them through

their choseil,'.repres~,;~.1.:tativ~,~· It furtlt:l~~,,Jefili~s sovereign power <y-' ~---;i:: ---

as the , power ·,;tq, m$e, 'aJ:l.d egf~£e;~1\laws. Concise Oxford

Dictionary 12th. ·:edit'ttiri.~,,s•.defitl~St'''h~~nstitutionalism as the _: ~" , ~ .~. , . ~ ~ ~f<Y~ <,. ·. /:··~·~,~':: :; ?~'::~:;~--~-~

, .•. adhepence. f~ a systefiq·.qf;t·~o · 'fu.t{5g~<'gQ~~nment. Applying . . ' . - . : ',. ' .. :~ . . . "" . . .

··. . .·.4~~J. ~, . ·. . .· .. ' .. . -~~0;-,~~:-·:,·~~;:,::;r:~;··fr · · . .·· ~~

these legal ct~finiti6.p.s to the.~~' •.. ,·P;~~ri'it !llay lR.e said that under ~ ·~.- .· .... ~· i~-~.·:. ~ .... :~~ .···~':~:;~::~~:~~*:~~:i·:_·:-;~;:~~~-.~:·.y.·.:_, . ·''· :·:j;:~j

article 249'of tne CGn'sti~uorri;~;:ttf:~g'i;petitionei:~~being one of the

Constitutional Coili~is~io~s 5aS, a;~,,/6~~ of its objects, the

protection of the p~wer of the ped:~1e'~,~~:~enya to make and

enforce laws in so far a~ falls within t~~~~~~~i;liq11,ers' specialized

mandate. Further, the petitioner has th~: ID:~~·~te to promote

adherence to the Constitution by,per::>ons·"W!i~~~~Jall within its ": ~<t-"""~"-' _;-.;-';c{

Constitution in so far as falls in th~ ,,;,,p~tit~~ners areas of ~-:'

operation.

59. Some of the petitioners core mandat~s,:as provided for under

article 237 of the Constitution include recruitment and

employment of registered teachers and exercise of disciplinary

control over them. The petitioner further has the duty to advise

32

the national government on matters relating to the teaching

profession.

60. Under article ·93(l)'nf the Constitution, every child has the right

among others to free and compulsory basic education. The

teachers recruited by the petitioner provide this right to the

children· 011 behalf of ·the . .petitioner in re;turri:'for salaries. It

cap.not the(efore .• be1~·~.~e~i~d. that in~~ef{~pl,lJing its constitutional < < ,·" ' f . ., ,; 'l ' ' ' ~ ". . ,

duties under. article"249r m.~~6petit!~h~t:Win from time to time be

confronted With disput~~~~~~:ttr~·~~~~J~~resently before the Court. . ···.· '·" ... ·.cL ... ,,~~c:i'\~d;•.(

To tb,.is extent article 237 n~;~liJ~.)fbg~ther' .. with article 249(1) . <;:·, ;, c:··, -'~~ ; .• :.<- •

clothes the petitio~er :with eP,oftgHiJ,aegal authority to bring the ;--:/"-; ... <··;,-.. ," . <

present ·petition on 'its behalf; tl'i~::qJl;iidfen in public schools and . .•

people of Kenyag~fi~;t~fy. Futthe.r,l,J.i):cler. artiele 22 proceedings

for enforcement of BiULof Rights ~~~~lJ:~<:htpU,ght either by the

person whose rights a.Ila fundamental ri~edo~ qre breached or -:_ ~ ' • $ ; •

on his or her behalf by among others, a< \p~r§:~~ acting in the

public interest. The definitions df ~·person .{tpd~r article 260 of

the Constitution includes body of persons .wpi~tll.~r incorporated

or unincorporated.

<,_[

61. The contention by Mr. Ahmednassirthat,WI organ, of state hence . ·;i' .

the state cannot litigate on Bill of Right £emai11s therefore novel

and grey.

33

62. Having considered the foregoing issues as I have, the only

question that remains to be res9lved 1n this petition is what

would be the appropriate orders to make in this petition?

Having reg~(:j. to the heat the ongoing strike has, generated

among the protagonists deciding on the appropriate orders to

make becomes challenging to me as a Judge,,;and takes me

63.

through venr anxious .mdm~nts and persoua~fr~fl~ction.

I ·have the petitioner on grp.e h~~( .Stating that it wants the - '"t -"t:~ l~J -~~-- i, '-:

teachers b~~k to 44~s ~~~~}~~~~t of any of the amounts

. §lW~ded in ;P~t1t~pn No ... 3 o ::st~ b,~c~:us~· .the judgment has

been app¢al~d Jrq:h and the'~i~~ · .'t~s ~~ndi11g,iibd on the other,

the respondents wfr0 have:··j~~~~:~;;~ml1..~ir memS~rs to stay away

from class unie·s1s3•·.;the~:' ~ward ,i~::,~etition No. 3 of 20 15 is '' ' '-· '- '•t;"""~-,, '\,;\ 'o', \ ·~:.'_:;-:_.'-'-, '

. implemented. In this S9enario, th;'ii:it~gt{ty a~ld respect for any '""' ,, < ' ' .'> ' ", ;<:!<

order the Court may make becomes a dalip.fi~~lig,sk. Making an

order in favour of one paity against m&·.:~~~r portends a • < ·~ ;_'-i_"'"---+:·::>, ·•

reputational risk to the Court as $} ai"biter g{;~h~ dispute. The ' .. ·:'Te.>}>'\4"'

Court will however not renege on :its cor1sit~~~ional duty to

interprete the law and make orders inf~ied by such

interpretation. Respect for Court Orders. ,j§ ,:our sovere1gn

responsibility as a people and no one ;sho~ld~:~regard him or

herself bigger than the sovereign will :of the ,fip~ople of Kenya ··"., .. :"<>><1

encapsuled in our Constitution.

34

'v

64. There is a sense in which it may be safely said that the current

teachers strike has transmogrified into political dispute in

respect of which the <Court should be very cautious before

throwing a legf11 fiat of judicial determination. It may be apt to

say at this point that our judicial institutions are meant to solve

legal disputes while political disputes should be left to our

politicalirtstitutions. Therefore while the Courtwill be making a

judicial pronouncem~nt oh"tfhe displlte over teachers' pay it is

incumbent upon th,~~ sta.t~r;(exe¢utive) and the legislature to

65.

-_ ', ' ',:, • -~-_," <

consider and reconsider~~;tilh.:i~~~~~~~~i{~'Stering wound that the issue } . . .. ·.. . t . ,, ~.;;;:~~?~~·:· .. ~;~;{'; ··, .. of tea0'hers' pay' has bl~eome"; ;,~):~-~-:t2r<,·' ·.

, , c ,_, - ~·". • .- ·\ ~ ·- --•• , ,.. :: ·;, • •• ·,·.-~IT.{~ .~

::.:·> \ "',, ',~ . ~< <· \

>< "' •

trustees of the sOv~reigh will oftlie p~ople of Kenya to resolve or

. at least mitigate the stalemate ovet:the. t~achers' pay. The . .

judiciary has tirelessly and dutifully disohal;:g~d. and continues >' • ·'

~ ··. . ·,, \\(:~~:. : .. 'd, .. :·< to discharge its role in resolviirg the disput~~:~'i:ltrifthe dispute be

" ~~ . . ... : .

dead, the Court as a surgeon canho.t. play tfl.~~ip~~blogist as well. ·-- .. -- . >.

Let the executive and legislature take the rol~ ot~~·mortician and

tell Kenyans the cause of death of the t~achers<~k_y dispute and e'

recommend a decent burial if that be the case. Blackmail, ,;-:.. ..

cajoling and "can't pay, won't pay q.ttitud"~( only serve to

entrench positions and allow the dispU,te to rela.t>se into a fodder

for political opportunism.

35

66. On the extreme end, the continuation of the strike is not good

for either of the protagonists. For the teachers it creates in them

the moral dilemma of leaving the' children whom they love and

sacrifice so. much to teach, suffer while for TSC as an .institution, ; :- ' '":

the continuation of the strike makes it look insensitive··to the

wellbeing of the teachers and borders on abqig:ation of TSC's

constitt.ttiaJ;tal duty of managing teachers~ ~f'ili_~~·'~n behalf of the ' ,. --

national governmen~.

6 7. The foregoin~ having. b~f?pt~~~ i;if~~f~ter resolving purely legal

aspects of the petitiofi a.nJ::cdJij~s~~~f~gg th.at ~~e Petitioner had

asked th~' Court ~~a~ alte~~~~~\j~O\take of~ers it may deem

fit in the circumstance~; ··~~~f~~b~iz:ing the'~~licate nature of

the dispute arid·what:~inf~or~end.~~fo;'tn.e.#\lJure of our children in

· public schools, and guiSfed by the pigY;i~i~~,ofarticle 3(1) of the

Constitution that binds us·.as a people.·t~:\:~~:sr.?ect, uphold and : · .. ' ''

defend the Constitution, appreciating the caltli).~~.ss and respect

the parties especially the respondents have dis~t~yed in awaiting ---<·_,,::_:--y,~~.>l;'il

the determination of this dispute and·d~oing ~~.·~~st I can in the

circumstances, I HEREBY ORDER AS toL£.0\:V~·~. ;;._ ' ~ ;•

A. In the interest of the children in the ptibUc schools and

the rights under article 53(l)(c) df.the Cpnstitution, the

respondents are hereby ordered to· suspend for 90 days,

the strike commenced on 1st September, 2015 with

36

C.

consequence that the respondents' members do resume

duties immediately.

B. The petitioner and the respondents within 30 days of this

Judgment, with help of the Cabinet Secretary for the time

being in charge of Labour, appoint a neut~;al and mutually "'

agreeab~e conciliator\., .or conciliatio.n·,· committee and ' f- ~ -,· ' " ' ; •

. ~ngage ~:q concilJ~tiori.',t,~;: good> ·r~Jth ·limited to exploring

viab·le m~d:a,Jltie~ :of' ill1~1ell\E}~tin~· the award in Petition

No. 5 of 201,5' be'at,i.!\g: 'JN·i,;~D:iind Government's fiscal

·.P9!icies ··~nd"b~dgetaeyi·~y~J~i}·'

The petitioner will not~ Ji;~{~;Ki~e · 6·r in a.J~ way take any

adverse step· ~t~iil~t : the:r:~~ t~~poil~~:qts' members for

participating in the strike calledaj11~~1·sl~p~ember, 2015 by

the respondents and this includes pa~IIJ.eftt~.,tqf full salaries

and allowances without any deductiori.~~:·jhatsoever on

account of the period tiU~L respond~:q.~s' members -:. -:: ·,-. ·-~,~.~,-:,

participated in the strike called by th.e respd'~:dents.

'. ";<,

D. Either party shall upon the expiry c,f tb.@L90 day period

stated in A and failure to conciliate tJte dispute as stated in

B above, be at liberty to declare a trad~ dispq~e and exercise

any of their rights as provided under article 41 of the

Constitution as read together with section 76 of the Labour

Relations Act.

37

E. Each party shall bear their own costs.

F. It is so ordered

.···.. . t.c ...

Dated at Nair<JJ;>i this ..... ~~ ........... day of-~···· 2015

, "\: Abirbd~ N@J$0ii; .·' , :/

. ·. . . . ~i·~~~d~e ·' . · Dehvere,d th1s ....•........... :.:,~; .. da~:~ rfl"''~~-

In the presenc~,·t>f:..;· r·· ,

........... " .............. ' ... "~- .::.,._-.. . ;> ·'' • :

I '' :" '

...... , ................................... ;; ................ ~.; ··~J,·~~~·}.;.~£fO!i the Respondent. ~"'8-"· .;, •• • J.·,. --' ·.;

Abu

38